ALAN MASSIE against CALLUM MCCAIG & Others

At the Court of Session the Scottish National Party and SNP councillor Callum McCaig of Aberdeen City Council have successfully appealed against an interim interdict granted on 19 December 2012.

In this action for defamation the pursuer Alan Massie was granted an interim interdict against the defenders prohibiting them from disseminating statements alleging or containing an innuendo that the pursuers donation of £11,500 to Gordon Constituency Labour Party was made in order to induce labour councillors in Aberdeen Council to perform their public functions improperly by voting in favour of development proposals by Carlton Rock Ltd in which Mr Massie has a controlling interest.

The first defender is a Scottish National Party councillor in Aberdeen City Council and the second defenders are that party.

On 22 October 2012 the first defender Callum McCaig issued a press statement alleging that the donation represented a conflict of interest in that Labour councillors were involved in the decision to grant Carlton Rock’s development proposals. On 12 December 2012 the SNP published an article on a website controlled by them repeating the allegations and also alleging that Labour councillors within a local school trust previously authorised the sale of the site to Carlton Rock for £7 million despite there being reportedly higher bid of £11 million.

The court examined four essential issues in the determination of this appeal: innuendo, qualified privilege, fair comment and the likelihood that the pursuer would be able to establish after proof that publication should be prohibited.

The court found that the innuendo of corrupting local politicians is, at least likely, to be made out after proof. The court was unable to conclude that the defenders had set out a sound basis on which to establish the defence of qualified privilege given that the statements were published on a national website and not simply restricted to a context which attracted qualified privilege, such as within a council meeting.

On the issue of fair comment the court concluded that the statements and the article constituted fair comment and that the defenders were entitled to raise and comment upon the matter of the pursuer’s donation.

In examining the likelihood of the pursuer eventually succeeding in obtaining a permanent interdict against further publication, the court considered that this was not likely and so it followed from that alone that the interim interdict must be recalled.

The court further concluded that the scope of the original interim interdict was too wide in that, while it prevents the defenders from disseminating statements containing any innuendo the pursuer’s donation was made in order to induce councillors to vote in favour of Carlton Rock’s development proposals, this also prevents the defenders from making reference to the donation in situations which would clearly be covered by qualified privilege, such as statements at a council meeting. In these circumstances the court would have been bound to recall this interim interdict on this ground also.

The court accordingly allowed the appeal and recalled the interim interdict granted on 19 December 2012.